Access denied: when the co-op board closes your outdoor space, can you get a rebate?

By Virginia K. Smith | August 4, 2014 - 12:59PM

Given the premium New Yorkers put on our outdoor space—even a particularly roomy fire escape—we can understand why someone would be less than thrilled to have their outdoor access suddenly revoked. But even if your terrace is closed for years, you may have little recourse or compensation. Or at least, that's the upshot from a recent court decision involving a resident of a Brooklyn Heights co-op building.

Shortly after Lawrence Goldhirsch moved into his apartment at 111 Hicks Street, the co-op board closed a shared outdoor terrace because of storm damage and a blocked drain, Habitat Magazine reports. Two years of repairs later, it reopened, but then had to be closed for another two years to facilitate unrelated roof fixes.

Though he'd never asked for a break on his monthlies during the actual construction (and a neighbor who had to move temporarily did get an abatement), Goldhirsch sued. He claimed the apartment was "unlivable," and that the co-op had breached both his proprietary lease (the equivalent of a deed in a co-op) and the warrant of habitability, and requested an abatement on his maintenance charges.

But the co-op prevailed. A judge ruled that because of some particular wording in the Brooklyn laws, the building was on the right side of the business judgment rule, a legal precedent that gives co-ops leeway to make decisions that serve their business interests. They also threw out Goldhirsch's claims about the warrant of habitability, noting that the closure of the terrace didn't in any way make his apartment "unfit for human habitation."

The lesson? If your board closes your terrace (or rooftop, or backyard...) for repairs that are never-ending, well, you'll have all of our sympathies, but probably not much else in the way of compensation.

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